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Stay of
Execution - General damages -
Unlawful detention of his
vehicle - Loss of use on the two
vehicles - Ownership.of vehicles
- Whether or not Plaintiff
suffered serious loss and injury
as a result of the conduct of
the Defendant -
HEADNOTES
the Plaintiff
herein averred he shipped one
used Nissan Primera Saloon car
and one Foden 3000 Tipper Truck
from London with appropriate
shipping documents to Ghana as
transit with the final
destination being Burkina Faso.
his clearing Agent upon
Plaintiff’s instructions applied
to the Assistant Commissioner of
CEPS, Tema for permission to pay
the necessary import duties to
enable him clear the said
vehicles in Ghana. Plaintiff’s
agents were permitted by the
Defendant’s representatives in
Tema to pay duty on the two
vehicles after the payment of
the duties on the said vehicles
and an acknowledgment of same by
the Defendant’s representatives,
agents of the Defendants seized
the two vehicles claiming they
were conducting investigations
into their ownership.
HELD
In the
premises, we hereby allow the
appeal, set aside the orders of
the Court of Appeal dated 24th
October 2012 and vacate them
accordingly. In their place, we
order that the Defendants pay
50% of the judgment awards plus
the costs without the interest
charges. Out of abundance of
caution, we order that the
Defendants pay 50% of
GH¢8,880.00 as award for the
Nissan Primera and also 50% of
GH¢177,660.00 as awards for the
Tipper Truck in addition to the
costs of GH¢10,000.00 inclusive
of costs of this appeal. We
further direct that, two months
from the date of this judgment,
the Registrar of the trial High
Court should transmit the record
of appeal to the Registrar of
the Court of Appeal. The
Defendants are therefore to
ensure that all the steps
necessary to give effect to the
preparation of the appeal
record, to wit, settlement of
record, fulfilling conditions of
appeal are complied with to
enable the trial Court Registrar
comply with the orders made
herein. Save as directed supra,
the rest of the judgment is
stayed as ordered.
STATUTES
REFERRED TO IN JUDGMENT
Customs,
Excise and Preventive Service
(Management) Act, 1993 PNDCL
330.
CASES
REFERRED TO IN JUDGMENT
Joseph v
Jebeille [1963] 1 GLR 387
Dzotepe v
Hahormene III & Others [1984-86]
1 GLR 289
Ballmoos v
Mensah [1984-86] 1GLR 725
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE JSC:
COUNSEL
ENO- AMAH
ANDOH ESQ. FOR
PLAINTIFF/RESPONDENT/ RESPONDENT
/APPELLANT.
JOYCE AMPAH
(MRS.) ESQ. FOR THE DEFENDANT
/APPELLANT/
APPLICANT/RESPONDENT.
JUDGMENT
DOTSE JSC:
The main
issue raised in this appeal
revolves around the principles
that an appellate court faced
with an application for Stay of
Execution must consider and
apply.
FACTS OF THIS
CASE
The
Plaintiff/Respondent/Respondent/Appellant,
hereafter referred to as the
Plaintiff claimed the following
reliefs in the High Court
against the
Defendant/Appellant/Applicant/Respondent,
hereafter referred to as the
Defendant:
PLAINTIFF’S
CLAIM AGAINST THE DEFENDANT:-
a.
“General damages for the illegal
and unlawful detention of his
vehicle from 19th
February 2008 to 9th
August 2010.
b.
Loss
of use on the two vehicles at
the rate of GH¢30 per diem on
the Nissan Primera and GH¢600
per diem on the Tipper Truck
from 19th February
2008 to 9th August
2010.
c.
Interest on the above sums at
the prevailing bank rate.
d.
Any
further order or orders as this
Honourable Court would deem fit
in the circumstances.”
Basically,
the Plaintiff herein averred in
his statement of claim that
sometime on or about the 5th
day of October, his lawful
Attorney, one Augustus Osae
Akonnor shipped one used Nissan
Primera Saloon car and one Foden
3000 Tipper Truck from London
with appropriate shipping
documents to Ghana as transit
with the final destination being
Burkina Faso.
However, the
clearing Agent of the Plaintiff,
Trafix Limited of Tema upon
Plaintiff’s instructions applied
to the Assistant Commissioner of
CEPS, Tema for permission to pay
the necessary import duties to
enable him clear the said
vehicles in Ghana.
Pursuant to
the above, the Plaintiff’s
agents were permitted by the
Defendant’s representatives in
Tema to pay duty on the two
vehicles on 19th
February 2008.
However,
after the payment of the duties
on the said vehicles and an
acknowledgment of same by the
Defendant’s representatives,
agents of the Defendants seized
the two vehicles claiming they
were conducting investigations
into their ownership.
The
Defendants contested the said
case, even though from their
defence, it was clear and
apparent that they had no
credible defence to offer.
In view of
the issues raised in this
appeal, we have decided to quote
in extenso paragraphs 3, 4, 5, 6
and 8 of the Plaintiff’s
statement of claim filed in
support of the writ already
referred to supra.
PLAINTIFF’S
STATEMENT OF CLAIM
3.
“Plaintiff says that on or about
5th October 2006 his
Lawful Attorney
Augustus Osae Akonnor shipped
one used Nissan Primera-Saloon
Car with Chassie No.
SJNFCAP11UO257367 and one Foden
3000 Tipper Truck with Chassis
No. SFNC104TOP300587 from London
(with a Bill of Lading No.
S.3009443890 to Ghana
in transit with the final
destination being Burkina
Faso.
4.
Plaintiff says that on 15th
February 2008 his clearing agent
by name Trafix
Limited of Tema applied on his
behalf to the Assistant
Commissioner – CEPS, Tema for
the payment of the necessary
import duties in order to
clear the said vehicle
in Ghana.
5.
Pursuant to the Plaintiff’s
agent’s letter of 15th
February 2008 and pursuant to
the agreement of the Defendant,
Trafix Limited on behalf of
the Plaintiff paid all
duties on the two vehicles on 19th
February 2008 per
receipt No. 2008060483.
6.
Three days after paying all the
duties on the vehicles
aforesaid, the
Defendant served him with a
seizure notice through his agent
on the ground that the
vehicles have being seized
pending investigations as to
ownership of the said
vehicles.
8.
Plaintiff says that he has
suffered serious loss and injury
as a result of the conduct of
the Defendant.”
In similar
vein, we deem it appropriate to
refer to the following
paragraphs 7 and 8 of the
Defence of the Defendants.
STATEMENT OF
DEFENCE
7.
“In further answer to paragraphs
6 and 7 of the Statement of
claim, the Defendant says that
after the necessary
investigation and procedures had
been completed and which are in
the interest of safeguarding the
safety of goods including
vehicles and that the true
owners take delivery of their
goods, the vehicles were duly
released to the plaintiff.
8. In
further answer to paragraph 8,
the Defendant states that
clearing of goods, at the
port is a process (and not an
event) the duration of which
depends on circumstances of each
situation and the Plaintiff
cannot blame Customs
for having engaged in a
cumbersome transaction involving
transit and home consumption and
getting involved in
changing from one regime to
another.”
After trial,
the learned trial Judge, on the
6th day of July, 2012
delivered judgment in which the
plaintiff’s reliefs as per the
writ of summons were granted in
terms as appear’s hereunder.
In view of
the antecedents of this case
which resulted into the Court of
Appeal granting an application
for Stay of Execution of the
judgment of the High Court of
even date, despite the fact that
the High Court refused a similar
application, we consider it
appropriate to quote in extenso,
portions of the erudite judgment
rendered by the High Court on 6th
July 2012 aforesaid, as follows:
“By paragraphs 3 and 4 of the
Statement of Defence, the Court
finds that the defendant
herein has admitted the
following facts averred in
paragraphs 2 to 6 of the
Statement of Claim.
1. That on the 5th
October 2006 Augustus Osae
Akonnor shipped one
Nissan Primera
Saloon Car and one Foden Tipper
Truck from London
to Ghana in
transit with the
final destination being Burkina
Faso.
2. That on the 15th
February 2008 the clearing agent
of the plaintiff
applied to the defendant for the
payment of the necessary customs
duties.
3. That on the 19th
February 2008 the plaintiff
through his agent paid
all
the customs duties on the two
vehicles.
4. Three days after
paying all the duties on the two
vehicles the
defendant
served the plaintiff with a
seizure notice on the ground
that the vehicles have been
seized pending investigations as
to the
ownership of the said vehicles.
The main question for
determination is whether or not
the seizure and detention
of the vehicles herein is
lawful and reasonable.
The functions of the defendant
as far as the Department of
Customs, Excise and Preventive
Service is concerned is quite
clearly stated in Section 2 of
the Customs, Excise and
Preventive Service (Management)
Act, 1993 PNDCL 330. The said
section 2 states that:
2. “Object and function
of the Service
The object
and function of the Customs,
Excise and Preventive Service is
to collect and account for the
duties, taxes, revenue and
penalties payable under this
Act.”
Indeed
nowhere under the Customs,
Excise and Preventive Service
(Management) Act, 1993 PNDCL 330
is the defendant authorized to
seize or detain an imported
vehicle for a period of two
years and over on the basis of
an allegation that the vehicle
whose customs duties and taxes
have been duly paid did
not belong to the importer or
the person whom the importer had
transferred his interest
therein.
The evidence before the court
show quite clearly that the
vehicles in question
were exported by the plaintiff’s
attorney herein from the United
Kingdom to Ghana and that
the plaintiff’s attorney after
sometime transferred his
interest in the vehicles to the
plaintiff who paid the
necessary customs
duties and taxes imposed by the
defendant as endorsed by
Exhibits A and A1.
The Defendant’s Representative
had testified that after the
payment of the
relevant duties and taxes the
importer was supposed to have
the vehicles released to him
at most five days thereafter.
There is ample evidence before
the court that the taxes were
paid on the two vehicles
herein on the 19th
February 2008. Nevertheless the
vehicles were not released to
the plaintiff who testified to
making several follow ups to the
offices of the defendant to no
avail. On the 15th
June 2010 the plaintiff
sent Exhibit ‘B’ to the
defendant for the release of the
vehicles to him. On the 9th
July 2010 the plaintiff wrote
Exhibit ‘C’ to the defendant in
which he questioned
the defendant’s right and
authority to seize and detain
the two vehicles through its
employees and servants.
Then on the 9th
August 2010 the Commissioner for
Customs wrote Exhibit ‘D’ in
which he ordered the release of
the two vehicles to the
plaintiff. The question is if
the vehicles were not detained
by the defendant ascontended by
the defendant’s representative
why was Exhibit ‘D’ written?
Indeed throughout the
evidence, the defendant’s
witness/representative could not
offer any tangible explanation
for the detention/seizure of the
two vehicles since 19th
February 2008 to 9th
August 2010 when they were
ordered to be released to the
plaintiff.”
From the
above rendition of the facts by
the learned trial Judge in the
judgment, it is apparent that
there was absolutely no basis
whatsoever for the detention of
the vehicles by agents of the
defendants.
Granting that
the seizure notices were issued
in error, the defendants should
have realised their mistake or
errors by the series of attempts
made by the plaintiff to draw
attention to the wrongful
seizure of the vehicles. These
attempts found expression in the
letters written by the
Plaintiffs to the Defendants as
in Exhibits “B” and “C” of
15/6/2010 and 9/7/2010
respectively. Indeed the length
of time taken by the defendants
to investigate a simple issue of
ownership of vehicles is an
indictment on the efficiency of
the defendants in the
performance of their functions
as prescribed under PNDCL 330.
What is also
apparent from the facts as had
been narrated by the learned
trial Judge is that the
officials of the defendants who
handled this matter were either
not concerned with the plight of
the plaintiff or were just
interested in showing brute
force and power in their
actions.
This clearly
epitomizes the frequent show and
display of naked power by public
officials in the discharge of
their duties. These phenomenom
normally leads to the public
entities incurring huge
liabilities for the state. By
this, funds which should be
channeled for development of
social amenities for the country
are used to pay avoidable
judgment and needless debts as
has happened in the instant
case. We believe the time has
indeed come for public
officials, who recklessly incur
liabilities for their
establishments through their
acts of omission or commission
must be surcharged for their
actions.
This no doubt
will serve as a warning to all
other public officials and
indeed the general public to be
circumspect in their conduct of
official business. It was not
surprising therefore for the
learned trial Judge to conclude
his judgment in the following
terms:-
“From the foregoing the only
conclusion that the Court can
come to is that the detention or
seizure of the plaintiff’s
vehicles was most
unreasonable in the
circumstances and this is
supported by Exhibit
‘F’ a memorandum written by
a Principal Collector/Legal to
the Assistant
Commissioner Legal of the
defendant institution on the 5th
August 2010. I will hold
in the circumstances that
the defendant is liable
in damages to the plaintiff.”
The monetary
awards which the learned trial
judge gave were as follows:
“The Court will allow the
plaintiff to recover damages in
respect of the two vehicles for
four days (4) a week in the sum
of GH¢30 per day for the
Nissan Primera and ¢600 per day
for the Tipper Truck beginning
from 20th day of
February 2008 to 9th
August 2010 from the 20thFebruary
2008 to the 9th
August 2010. I will give 74
weeks and an allowance of 4 days
a week will give a total
of 296 days working therefore to
the following:-
1.
Nissan
Primera
GH¢30 a day
multiplied by 296 days gives
GH¢8,880.00
2.
Tipper
Truck
GH¢600 a day
multiplied by 296 days gives
GH¢177,660”
The Court
then entered judgment for the
plaintiff against the defendant
for loss of use as follows:
1.
“Nissan Primera GH¢8,880
2.
Tipper
Truck GH¢177,600
The Plaintiff will also recover
interest on the above sums of
money at the current bank rate
from 20th February
2008 to the date of final
payment. Cost of GH¢10,000.00 to
the Plaintiff against the
defendant.”
The
Defendant’s felt aggrieved with
the above judgment and appealed
on the 31st July 2012
with the following as the
grounds of appeal:-
1.
The judgment
is against the weight of
evidence.
2.
The trial
Judge erred in law by entering
judgment for loss of use on
figures given by the Plaintiff
for assessment of “loss of use”
without any corroborative
evidence whatsoever.
3.
That the
award of damages and interest
simultaneously without basis or
justification was wrong in law.
4.
Other grounds
to be filed upon receipt of a
copy of the judgment.
In the Notice
of Appeal, it is interesting to
observe that the Defendants
prayed the Court of Appeal to
set aside the part of the
judgment awarding the Plaintiff
Damages for “loss of use” and
interest at the same time.
Our
understanding of the above is
that, the Defendant’s relief is
against the grant of the “loss
of use” and interest at the same
time. This might give the
indication that the Defendant’s
concede that the plaintiff is
entitled to some damages albeit
without interest.
What is also
worth noting is the fact that,
to date, this appeal is still
pending and has not been listed
for hearing.
Following the
refusal of an earlier
application to the High Court
for Stay of Execution of the
judgment of 6th July
2012, a repeat application to
the Court of Appeal found favour
with the said court which
expressed itself in the
following terms:-
“BY COURT: This is a motion for
stay of execution pending
appeal. We have heard
both counsel and come to the
conclusion that this is an
appropriate case to
stay execution of the decision
of the trial court delivered on
6th July 2012. The
main subjects of the litigation
have been released
to the Respondent hence the only
outstanding issues pertain to
the awards that the trial
judgment made. We accordingly
stay execution as prayed.”
Feeling
naturally aggrieved with the
decision of the Court of Appeal
as has been stated supra, the
Plaintiff appealed to the
Supreme Court against the ruling
of the Court of Appeal which
granted the stay of execution as
stated supra on the following
grounds of appeal:-
GROUNDS OF
APPEAL
a.
“The
learned Judges with all due
respect to them failed in
applying the time Honoured
Principles in Joseph v
Jebeille [1963] 1 GLR 387
when they granted the
Defendant/Appellant/Appellant/Respondent’s
application for stay of
execution pending appeal
b.
The
excuse that the vehicles in
question being the main subject
of litigation had been released
to the Respondents therein was
with all due respect untenable
since the release of the
vehicles was never an issue
before the trial Court given the
fact that the
Plaintiff/Respondent therein
sued for damages for loss of use
for the 21/2 years
that the vehicles
were unlawfully detained by the
Defendant.
c.
The
Court of Appeal with all due
respect wrongfully exercised its
discretion in granting the stay
of execution pending appeal in
favour of the
Defendant/Appellant/Applicant/Respondent.”
From the
ruling of the Court of Appeal,
and also by the grounds of
appeal as filed by the
defendants it is clear that the
Court of Appeal took extraneous
matters into consideration when
they delivered their ruling of
24th October 2012.
This is because, it is very
clear that the release of the
vehicles has never been made
part of the case of the
Plaintiff from the trial Court.
This is because the vehicles had
been released prior to the
commencement of the suit as the
case was fought on the grounds
of the loss of use of the said
wrongfully detained vehicles.
Refer to the reliefs of the writ
of summons.
A perusal of
the writ of summons gives the
clearest indication that the
release of the vehicles was
never made an issue before the
trial court. With the greatest
respect, the Court of Appeal
acted under the wrong
appreciation of the facts of the
case.
With the
above observation as a guide,
the issue that calls for
determination in this appeal is
whether the Court of Appeal in
granting the stay of execution
applied the principles for grant
of Stay of Execution and
exercised their discretion
properly in the matter.
In the
celebrated case of Joseph v
Jebeile & Anr. [1963] 1 GLR 387,
Akufo-Addo JSC (as he then
was) speaking for the Supreme
Court stated on Stay of
Execution where payment of large
sums of money are involved in
these terms:-
“Generally,
where an application for stay of
execution pending appeal is
considered in a case involving,
inter alia, payment of m
deprived of the fruits of his
victory as what the position of
a defeated party would be who
had had to pay up or surrender
some legal right only to find
himself successful on appeal.
Generally where large sums of
money are involved the policy of
the law would not be against
staying execution; but on
condition that the
judgment-debtor pays into court
the amount of money involved,
or, when refused, on the
condition that the
judgment-creditor gives security
which is approved by the judge.”
The above
principle has been followed by
the Courts for so many years
that it has almost become an
accepted case law. We believe
that explains why learned
Counsel for the plaintiff
referred to it in his grounds of
appeal.
As a matter
of fact, the judgment that has
been stayed, remains valid until
set aside by a Court of
competent jurisdiction. For now
save for the grant of the stay
of execution, the judgment of 6th
July 2012 is still valid and
subsisting.
The Plaintiff
as the judgment creditor should
have been made to enjoy parts of
the fruit of the successful
litigation. The Court of Appeal
unfortunately did not give any
consideration to the plight of
the Plaintiff who had to endure
2 1/2 long years for
the Defendants to release his
vehicles to him for no just
cause.
Persons and
institutions who fall foul of
the law must be made to pay
adequate compensation for their
acts of omission or commission.
That is the only way we can
strive to build a just and fair
society.
It is in the
blanket grant of stay of
execution by the Court of Appeal
without any corresponding awards
to cushion the plaintiff where
judgment remains valid that is
untenable considering the
circumstances of this case.
We have as a
Court come to observe that many
applications for stay of
execution are just delay
strategies designed to prevent
and or delay the judgment
creditors from enjoying the
fruits of their judgment. We do
realise that there may be some
really genuine concerns and the
need to stay execution of some
judgments. Each application must
be considered on a case by case
basis.
For example,
when an application for stay of
execution is granted, then it
must be granted on terms to
ensure that the beneficiaries of
the grant of such applications
do not go to sleep. Quite often,
such beneficiaries of these
applications go to sleep
especially if no conditions have
been imposed on them.
In the
instant case, the Defendants
were not given any conditions
upon the grant, and no doubt
have gone to sleep.
Judgment was
delivered on 6th July
2012, the Notice of Appeal was
filed by the Defendant against
the judgment on 31st
July 2012 and the Court of
Appeal granted the stay of
execution on 24th
October 2012.
To date, the
appeal has not been listed for
hearing at the Court of Appeal.
We are of the conviction that,
courts to which applications for
stay of execution are made
should impose stringent
conditions for the grant of such
applications whenever they were
minded to, in order to ensure
that the beneficiaries of such
applications do not go to sleep,
abuse the judicial process and
inconvenience the judgment
creditors.
We are indeed
fortified in our thinking by the
following statement of Apaloo
C.J, in the case of Dzotepe v
Hahormene III & Others [1984-86]
1 GLR 289 at 293
“Recent
experience shows that appellants
who obtain a stay of execution
thereafter go to sleep and show
very little interest in the
prosecution of the appeal. On
that account, we intend to grant
the stay for a limited
duration and on terms. From what
we read of the judgment and
bearing in mind the deprived
conditions in the country, we
think it should not take more
than three months for the
preparation and transmission, of
the record of appeal to this
court. Accordingly, we order
that the applicant shall use his
best endeavours, including the
provision to the registry of the
court below of stationery to
have the record of appeal and
the service of Form 7 completed
on or by 10 March 1985. If by
that date the record of appeal
has not been forwarded to this
Court, we would
consider whether the order
granting a stay should not be
revoked. If by that date the
record is transmitted and all
the appeal formalities are
concluded, we will proceed to
hear the appeal on its merits.”
From the
above, it will not be out of
place for trial and appellate
courts who intend to grant
applications for stay of
execution to do so on terms such
as will expedite the appeal
process. In this regard, may be
desirable to impose time lines
for the settlement of records of
appeal, fulfilling of the
conditions of appeal therein and
a further directive on the
registries of the trial Courts
or first appellate courts to
endeavour to complete the
preparation and transmission of
the records of appeal to the
appellate courts for hearing of
the appeals.
If such
conditions had been imposed in
this case, we believe the appeal
would have been heard at the
Court of Appeal by now.
One of the
grounds of appeal urged before
this court is the wrong exercise
of discretion by the Court of
Appeal.
In the case
of Ballmoos v Mensah
[1984-86] 1GLR 725, holding
I, the Court of Appeal stated
quite clearly the circumstances
under which the Court would
interfere in the exercise of the
discretion of the court. In the
above case, the court, whilst
dismissing the appeal, held as
follows:-
“The Court of
Appeal would not interfere with
the exercise of the trial
court’s discretion save in
exceptional circumstances.
An appeal
against the exercise of the
Court’s discretion might succeed
on the ground that the
discretion was exercised on
wrong or inadequate materials if
it could be shown that the court
acted under a misapprehension of
fact in that it either gave
weight to irrelevant or unproved
matters or omitted to take
relevant matters into account;
but the appeal was not from the
discretion of the court to the
discretion of the appellate
tribunal.”
Flowing from
the above decision, it is
apparent that the
misapprehension of the facts by
the Court of Appeal in the
release of the detained vehicles
weighed very heavily on them in
their decision. Now that it is
clear that the narration and
appreciation of the facts of the
case is wrong, the discretion
must be set aside.
In the same
vein, the Court of Appeal must
have taken those extraneous and
irrelevant matters into
consideration when they gave
their ruling which is on appeal.
Basing
ourselves on those authorities,
we hereby interfere with the
Court of Appeal’s exercise of
discretion in the matter.
In the
premises, we hereby allow the
appeal, set aside the orders of
the Court of Appeal dated 24th
October 2012 and vacate them
accordingly. In their place, we
order that the Defendants pay
50% of the judgment awards plus
the costs without the interest
charges. Out of abundance of
caution, we order that the
Defendants pay 50% of
GH¢8,880.00 as award for the
Nissan Primera and also 50% of
GH¢177,660.00 as awards for the
Tipper Truck in addition to the
costs of GH¢10,000.00 inclusive
of costs of this appeal.
We further
direct that, two months from the
date of this judgment, the
Registrar of the trial High
Court should transmit the record
of appeal to the Registrar of
the Court of Appeal.
The
Defendants are therefore to
ensure that all the steps
necessary to give effect to the
preparation of the appeal
record, to wit, settlement of
record, fulfilling conditions of
appeal are complied with to
enable the trial Court Registrar
comply with the orders made
herein.
Save as
directed supra, the rest of the
judgment is stayed as ordered.
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL
ENO- AMAH
ANDOH ESQ. FOR
PLAINTIFF/RESPONDENT/ RESPONDENT
/APPELLANT.
JOYCE AMPAH
(MRS.) ESQ. FOR THE DEFENDANT
/APPELLANT/
APPLICANT/RESPONDENT.
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